Law Society of Tasmania v L H and L a H

[2003] TASSC 90

[2003] TASSC 90

CITATION:              Law Society of Tasmania v L H and L A H [2003] TASSC 90

PARTIES:  LAW SOCIETY OF TASMANIA
  v
  L H

L A H

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M379/2001

M380/2001

DELIVERED ON:  24 September 2003
DELIVERED AT:  Hobart
HEARING DATES:  1 September 2003
JUDGMENT OF:  Slicer J

CATCHWORDS:

Professions and Trades – Lawyers – Misconduct, unfitness and discipline – Disciplinary proceedings – Statutory proceedings – Tasmania – Referral back to Tribunal – Effect of prejudice through publicity.

Legal Profession Act 1993 (Tas), s80.
Aust Dig Professions and Trades [134]

REPRESENTATION:

Counsel:
           Applicant:  B Crawford
           Respondents:  P W Tree
Solicitors:
           Applicant:  Crawford & Crawford
           Respondents:  In Person

Judgment Number:  [2003] TASSC 90
Number of Paragraphs:  9

Serial No 90/2003
File Nos M379/2001

M380/2001

LAW SOCIETY OF TASMANIA v L H AND L A H

REASONS FOR JUDGMENT  SLICER J

24 September 2003

1. The circumstances surrounding and giving rise to this application have been stated, and their import considered, by the learned Chief Justice in R v The Law Society of Tasmania; Ex parte LH & LAH [2002] TASSC 116, and require no repetition. In those reasons, the learned Chief Justice observed, at 15:

"It was likewise a reasonable decision on the part of Council to elect to make application to the Supreme Court rather than to the Tribunal as the matter raises issues of the reasonableness of retainer agreements which authorise the practitioner to charge clients who recover verdicts fees which compensate for the work done for others who do not and which provide a fund from which costs ordered to be paid by unsuccessful clients can be paid by the practitioner in accordance with cl 3. Whether the matter ultimately proceeds in the Supreme Court or is referred back to the Council or Tribunal would depend upon the evidence before the Court after the application is made."

1. Both respondents have applied for the referral of the complaint made against them from this Court to the Disciplinary Tribunal established under the Legal Profession Act 1993 ("the Act").

1. On 19 December 2001, the Law Society ("the Society") by separate applications against each respondent sought determination by the Supreme Court of a complaint of professional misconduct, contrary to the Act, s56.  The separate complaints related to different conduct occurring on 28 October 1999 and 6 March 2000, respectively.  Each complaint comprised two respondents, namely R, a partner of the law firm W, and the other respondent here.  In each case it was said that the respondent, here, had signed an impugned bill of costs, but did so at the behest of, or under the authority of R.  Each respondent here maintains that he had no discretion and acted in accordance with a direction, general or specific, given by an employer.  The Society might well be concerned with disparate defences and differing evidence given at separate hearings.  The applications here involve issues of prejudice to the respondents and consistency of outcome.

1. The respondents contend that referral to the Tribunal will permit a proper adjudication of their respective responsibilities, whilst protecting their reputation within the community and prospects for employment.  They claim that since their misconduct, at worst, was that of an employed solicitor acting in accordance with the direction of a senior practitioner within the ambit of a "costs agreement", the effect of publicity on their professional reputation and future prospects of employment outweighs any purpose of joint proceedings in this Court.  The Court accepts that both respondents are likely to be adversely affected, but that such interest and prejudice is outweighed by public policy, the purpose of conducting a joint hearing, consistency of outcome and the interest of a complainant in choosing the appropriate forum.

1. The Act, s80, provides:

   "80 ¾ (1)    Any person may make an application to the Supreme Court to hear and determine a complaint.

   (2)     An application under this section, unless the Supreme Court otherwise orders, is to be heard in open court and in accordance with the Rules of the Supreme Court 1965.

   (3)     Notice of an application made under this section is to be given to the parties to the complaint to which the application relates.

   (4)     If the Supreme Court considers that an application relating to a complaint should be heard and determined by the Council or the Tribunal, it may refer that complaint to be heard and determined by the Council or Tribunal."

2. Whilst s81 affords the Court all the powers provided to the Tribunal under s76(1), Parliament has preferred the proceedings to be held in "open court" unless there is good cause to order the contrary.  Transparency and public exposure in cases involving a profession are required by public policy as a means of maintaining public confidence.  In this case, the issues raised are significant, involving consideration of "no win, no fee litigation" and the respective obligations of a partner and an employed solicitor.  This Court is better able to provide future guidance by way of authority.  Given the import of these issues, it is not unlikely that any decision of the Tribunal will be the subject of an appeal to this Court by way of the Act, s78.

1. The Society is entitled to choose a single forum in an attempt to obtain consistency of outcome, especially in a case where there is a potential for the respective parties to seek to transfer responsibility to the other.  Questions of evidence relating to protocols, directions, and the like, might be common to all parties and convenience suggests that they be dealt with in the one hearing.

1. Those factors outweigh the subjective interests of, and possible prejudice to, the respondents.

1. The applications in both cases are dismissed.